1. The amendment to the affidavit takes a ground which goes behind the judgment. This is directly in the teeth of the section of the Code providing for illegalities: Section 3671. The judgment is conclusive ¿hat the ground taken is untrue, as the defendant in ft. fa. has had'his day in court. Nor are we prepared to say it would have been good as a plea to the original suit. The man who let the plaintiff have the note for an illegal consideration does not complain, and if he is satisfied, it is no business of the maker of the note to complain.
2. The issue on trial was the payment or non-payment of the execution to the plaintiff in execution or his agent. The plaintiff and the agent are both dead. This is within the very words of the exception to the evidence act.
3. It was in the discretion of the court to refuse the continuance, and the showing was very defective. It did not state that it first occurred to the party during the trial. The statement made is perfectly consistent with the idea that he had known it before, and that he had failed to subpoena the witness from neglect. We do not know what the truth of the matter was, nor did the court below. Such statements must be construed most strongly against the party making them. *87'If he had forgotten the fact, apd he had just then remembered it, he could easily have said so.
Judgment affirmed.